The Limits of Law in Public
Health Emergencies:
Building Resilient Communities
Edward P. Richards, JD MPH
Program in Law, Science and Public Health
LSU School of Law
http://biotech.law.lsu.edu
Learning Objectives
Why legal authority in emergencies is very
broad
 Why legal authority is usually the wrong
question
 Moving to all-hazards planning
 Moving beyond all-hazards planning to
resilient communities
 Close with a Q & A session

So, Can I Shoot Them?
Think how it is going to
look a year latter in court.
Why are You Worried about Legal
Authority?
You will be stopped from acting by a judge
 You will be sued later for acting
 You will be prosecuted later for acting
 You are worried that your department will
not be paid for the personnel and materiel
used.
 You are worried about the political fallout
from what you do.

The Source of Legal Authority for
State Agencies

The Constitutional Reservation of Police
Powers to the State

What are the police powers?
The allocation of the police powers by the
state constitution
 The delegation of the police powers by the
legislature, if required by the state
constitution

Do You Need a Detailed Law?

The courts have upheld public health
emergency actions based on broad
delegations


"Do what you need to do to protect us"
This deference is greatest in emergencies
The Important Questions
Is there really is an emergency?
 Are you trying to save lives and/or prevent
injuries?
 Do you know what you need to do and
how to do it, and do you have the
necessary materiel?
 Are you trying to use emergency public
health power for law enforcement?

Why the Push for Lots of
Emergency Powers Laws?
Confusion over legal authority by lawyers
who are frightened to say yes
 Confusion between lack of authority and
screwing up
 Failure to understand that detailed laws
pose new risk
 Real concerns on who is going to pay for
stuff

Why do Legislators Pass
Emergency Powers Laws?
Legislature as sausage factory
 Law is cheap
 Passing the buck

Please sir, can I have some personnel and
rate funding with that responsibility?
The Worst Case
Lots of very specific laws and
duties, and not enough resources
to do the job.
Moving to All Hazards
Planning
What We Do Well
Traditional Emergency Response

Geographically limited
Crime scenes
 Tornados
 Derailed trains


Temporarily limited
No one is staffed to run at 100% mobilization
 Most people have multiple duties


Relatively frequent events
What We Do Not Do Well
Wide geographic region
 Long time frame
 Significant displaced population
 Maintain readiness for long periods
without events

Training and materiel costs
 Loss of public attention


The pandemic flu problem
All Hazards Planning
Generalize plans so that planning for the
federal crisis de jure provides real benefits
 Many of you have started doing this
 Examples

Use pandemic flu planning to address the
yearly flu pandemic
 Use terrorist attack planning to educate the
community about risks such as chemical plant
accidents

Why All Hazards?

Difficult to maintain readiness for a low
probability event


Plan must provide short term benefits to be
supported in the long term
Impossible to change behavior patterns on
short notice

Plan must incorporate new behaviors and
attitudes into everyday situations
Example: All Hazards Planning
for Pandemic Flu




Institute vaccination programs for all
recommended adult immunizations
Address policies that encourage employees to
work sick
Develop and implement workplace surveillance
for infectious disease risks
Include families in these plans because officers
cannot work effectively if their families are at risk
Management Oversight
Advantages
Provides measurable outcomes, which
disaster only planning does not
 Provides an economic and workplace
benefits which will make the program
easier to continue
 Requires policies to be worked out with
unions and other stakeholders

Assures buy in
 Identifies problems

The Next Step:
Resilient Communities
Bring All Hazards Planning for Wide
Scale Public Health Emergencies to
the Community
What is a Wide Scale Public
Health Emergency?

Long term




Widespread



Days to longer
Depletes manpower and resources
The affected population requires support
Affects a region or significant urban area
Affects everyone, including the police and public
health personnel
Significant Risk
Examples

Epidemic


Bird flu
Wide area hazmat incident with long term
risks
Anthrax
 Dirty bomb


Natural disaster
Hurricanes, very severe winter storms
 Earthquakes

Limited Response Options in
Public Health Emergencies
You cannot shoot people who are just
trying to take care of their families
 You cannot arrest large numbers of
persons to restore order
 You cannot occupy significant territory
 You cannot begin to supply basic
necessities to everyone who is affected

Your People are also Victims
Widespread public health and
environmental crises affect law
enforcement personnel
 Most personnel will look to their families
first
 Law enforcement families cannot be
protected outside of the context of
their communities

Day to Day Life Goes On

No federal plan acknowledges that there
are criminals and the homeless


Biggest joke - Pandemic flu plan says they will
close the borders
Too many plans can only be staffed by
assuming that no other law enforcement or
first response activities will take place

Only works for short periods
Why 9/11 is the Wrong Model
Deaths, but not injuries - limited impact on
health care
 Relatively small percentage of the
population displaced for a long period of
time
 Relatively little infrastructure destroyed
 No mitigation strategies

Why Katrina is a Better Model
Widespread
 Long-term
 Foreseeable
 The risks could have been mitigated
 The response needs outstripped all
available resources

What Do Communities Need in
Public Health Emergencies
Food, water
 Environmental management such as heat
 Transportation and shelter if an evacuation
 Primary health care
 Family support - where are the kids?
 Support of local institutions, not volunteer
imperialism.

Who Will Provide for the Public?

Federal model
Local first responders
 Supported by the military and federal support


State Models


Public health, supported by law enforcement
Reality

In most areas the police are the organizations
with the most staff and resources
Who Will Fund This in the Long
Term?

The existing money is coming from other
essential services that cannot be
postponed forever
Priorities will shift as fears of disaster abate
 Many health departments are losing net
money


Bottom-line: No one is funding real public
support
Objectives of Resilient
Communities
Reduce the need for support from public
services
 Reduce suffering and death
 Reduce the risk of public disorder
 Most important:
 Build trust and credibility so the
community will cooperate with
needed mitigation measures

Building Blocks for Resilient
Communities
Honest Risk Communications

Be realistic about the risk
Bird flu v. yearly flu
 Hurricane v. terrorist attack
 Do not bet against gravity
 Do not suppress market risk signals


Just say No to Potemkin planning
Big issue in public health
 Hurricane Pam
 Being a team player puts the public at risk

Realistic Preventive Strategies


Must fit in with real household management
Examples





Gasoline
What to take in evacuations
How to keep food and water on hand
How to treat water and what is safe to eat when the
refrigerator goes off
When to go back and what to do when you get there
Start with Your Own People

Get the families of your own people
involved
Builds support - they become part of the
solution
 Direct benefits to the department


Encourage them to involve their neighbors
Stabilizes the neighborhood, making their own
situation more secure
 Do not be the only person on your block with
water

Working with Other Organizations
Find out if your local public health plans
are really staffed and supported
 Find out the plans of the local hospitals
and other health care providers
 Coordinate with retailers
 Work with churches and other private
organizations


Walmart and Home Depot can move goods
more effectively than Northcom
Reinforcing the Message when
Disasters are out of Fashion

Priorities are going to shift


No politician will keep supporting prevent
measures once the public gets interested
in other things


FEMA has already punted on realistic building
standards in New Orleans and the Gulf Coast
We have a lot of social problems we have
been ignoring
The problems will still be there
Political Benefits

Most communities do not trust public
health (some do not trust the police)
Anti-vaccination forces
 Equating trans-fat with the plague
 Incompetent political appointees in critical
positions


Law enforcement will bear the risk of failed
public health response